Nandini Sundar’s case study of Podiyam Panda’s plight as a victim of the police plot to show him off to the press as a surrendered Maoist’ (re: Questionable legality of the Surrender Process in Chhattisgarh’ in the Counter-currents website of May 23, 2017), not only re-iterates the well-established notorious role of the Indian police in framing innocent people, but also throws light on the role of the judiciary, which unwittingly, indirectly, or purposefully, often collaborates with the police . If we look at the historical record of some of the verdicts rendered by judges, both at the district and state levels, as well as at the apex court, over the last several decades, we find a continuity of sorts. Indian judges by and large, have sacrificed their professional obligation to deliver justice to the poor victims, by acquitting their oppressors through judgments that reflect their caste and class-oriented biases, and also their subservience to the ruling powers.

The most scandalous example of the Indian judiciary’s bias in favour of the upper-caste and upper-class, was the judgment delivered by the Madras High Court in 1973 , when it acquitted all the twenty odd upper caste people who were accused of burning to death some forty two Dalits, including women and children, in their huts in Kilvenmani in Tamilnadu in December, 1968. While acquitting them, the honourable (?) judges said: “The rich landlords could not be expected to commit such crimes…it was difficult to believe that they would walk bodily to the scene and set fire to the houses…” Since then, a large number of the judgments delivered, whether from the lower courts or at the apex level, have reflected a similar bias in favour of the privileged classes and the majoritarian Hindu beliefs and customs on the one hand, and prejudices against members of the poorer classes who dare to protest against oppression, and Muslim minorities (who suffer from discrimination) on the other.

In October, 2013, a division bench of the Patna High Court acquitted all the twenty seven upper caste Bhumihar landlords of the Ranvir Sena, who massacred fifty eight Dalits in Laxmanpur-Bathanitola in Bihar in 1997 – even after they were convicted by the sessions court in 2010. Rejecting their conviction, the division bench consisting of Justices V.N. Sinha and A.K. Lal ruled that the witnesses (to the massacre, mainly coming from the neighbouring Dalit community) who were produced by the prosecution were “not reliable,” and hence the appellants (the Bhumihar landlords who had approached the high court against their conviction) `deserved to be given the benefit of the doubt.’ Following this judgment, the killers were soon released – and for all that you know, they are now on the rampage against Dalits in their fiefdom in Laxmanpur-Bathanitola. I wish a reporter visits those villages today to find out how the survivors of the 1997 massacre protect themselves from the possible reprisal by the released Bhumihar landlords.

Take another case of religious bias of the judiciary. In 2015, a Pune engineer Mohsin Sheikh was killed by members of the Hindu Rashtra Sena. Seventeen of them were arrested. The Bombay High Court granted bail to three of them on the basis of a peculiarly contrived argument: “The applicants (accused) had no other motive such as any personal enmity against the innocent deceased Mohsin. The fault of the deceased was only that he belonged to another religion.” The judge then added: “I consider this factor in favour of the applicants/accused. Moreover, the applicants/accused have no criminal record and it appears that in the name of the religion, they were provoked and have committed the murder.” (Re: Aloke Prasanna Kumar’s article in The Wire, 16/01/2017). Should a judge who pardons murder in the name of religion be allowed to function ? Do not such judges defile the institution of judiciary ?

The Indian judiciary’s selective evaluation of offences

While acquitting the upper caste and upper class murderers of the downtrodden agricultural labourers and dalits, members of the Indian judiciary had chosen to sentence to imprisonment – and even death – those who come from the depressed and religious minorities who dare to assert their rights or protest against atrocities of the state. Some of these judgments, delivered at various levels, can be described as gradations of offences according to the predilections and prejudices of the individual judge, or the bench – whether political or religious, or purely from nationalistic impulses (like `my country, right or wrong’.)

One of the worst stains on our judiciary that has been left by such predilection of judges, was the Supreme Court’s judgment sentencing Afzal Guru to death. He was implicated in the attack on Indian Parliament on December 31, 2001. The attack exposed the failure of the Indian government’s intelligence agencies and security forces to protect Parliament. Unable to trace and punish the main culprits (who were operating from Pakistan), these agencies needed a scapegoat – and the easily available one was Afzal Guru, a Kashmiri separatist. Despite gaping holes in the long drawn out case against Guru, after more than a decade, the Supreme Court passed the death sentence on him on the ground: “…collective conscience of the (sic.) society will only be satisfied if the capital punishment is awarded to the offender.” How could the honourable judges define collective conscience’ ? Did they seek a popular verdict through a referendum, to test whether the entire collective’ was in favour of the death sentence ? In fact, during all those years of the hearing of the case, large sections of the collective’, including not only citizens of Kashmir where Afzal Guru was born, but human rights groups and lawyers gathered from all over India, to defend a young man who was held guilty by association only. Shamefully, even President Pranab Mukherjee - the much-trumpeted erudite ex-professor - acted like a rubber stamp of the government and the judiciary by rejecting Afzal Guru’s mercy plea. Yet, he could have exercised his discretionary powers which he enjoys under the Constitution, to save the life of a young man. I wonder, whether on the eve of his retirement from presidentship, does he suffer from pangs of his individual conscience’ ? Or, has he sacrificed it for the so-called `collective conscience’ as defined by a judiciary, that seems to be swayed by the hyper-nationalist rhetoric of the Indian state.

The latest example of judicial terrorism – if I may be allowed to use that term even if inviting the charge of contempt of court’ - is the judgment delivered by the Principal District and Sessions Judge, S.S. Shinde in the district court in Gadchiroli, in March 2017, against the wheel-chair bound Delhi University professor G.N. Saibaba, accusing him of aiding and abetting Naxalite activities’. Widely well-respected by his students and colleagues, he has been sentenced to life-imprisonment. The following words of the judgment expose the inhuman and vindictive psyche of the judge who sentenced him : “Merely because Saibaba is 90 percent disabled is no ground to show him leniency… he is physically handicapped but he is mentally fit, a thinktank and a high-profile leader of banned organizations.”

Judges – torn between conscience and rules

But there are other judges who want to stick to the rules, and yet fail to deliver justice. While acquitting the accused (of crimes like communal and casteist offences), they usually take the plea that the prosecution had not provided enough evidence’ to convict the accused. This is a legalese that ignores the behind-the-scenes operations that take place in the usually long-drawn out cases. In such secret operations, the accused from the upper class and upper caste groups (involved in class and caste based killings), and from the majority Hindu community (accused of massacring Muslims), threaten the witnesses for the prosecution to withdraw their complaints, and they are made to turn hostile’ (another legalese). Witnesses in India are seldom left to themselves. They are tutored, bribed or threatened either by the police to build up their prosecution cases, or by the defence to support their efforts to get the accused free. The common citizen who had been unfortunate enough to be hauled up as a witness in a court case had always been a victim of this cross-fire. Flip-flops in their statements had thus been a part of Indian judicial proceedings for years – which had led to the acquittal of the guilty or the sentencing of the innocent.

The role of Zaheera Sheikh (who reneged on her earlier testimony in the Best Bakery case during the 2002 Gujarat killings) puts the crisis in a sharp focus. Human rights activists who were initially enthused over her courage to give testimony against the guilty were soon dismayed by her volte face. They speculate now over a misty web of various possibilities that could have brought about the change – a combination of threats and bribes by the BJP patrons of those accused of the Best Bakery carnage; pressures from her family in view of the financial benefits accruing to them if she reneged on her testimony; her seduction by the comforts of expensive hotels and guest houses – the first time in the life of a young daughter of a poor baker. She was put up here by the Gujarat police when they discovered that her retraction in the role of a hostile witness’ in the court was the best clean chit that they could ever get to cover up their abetment in the killings at Best Bakery. Thus, powerful interests can bribe the police to dilute the chargesheets against them by inducing them to leave out the vital eye-witnesses of their crimes, or turning these witnesses into hostile.’ This allows the judges to complain that the prosecution has not provided `enough evidence.’ But the judges can surely suo motu intervene by appointing an amicus curiae to investigate into such cases to bring out the truth.

The other plea given by the judges is that their hands are tied by the provisions of the various criminal laws that they have to adhere to when passing judgments. A typical example is the death sentence passed on the two famous Naxalite peasant revolutionaries – Krista Gowd and Bhoomaiah – by no less a person than the then Supreme Court judge V.R. Krishna Iyer on October 3, 1975 . Although he emerged as a champion of human rights in the post-Emergency period, Krishna Iyer signed the death sentence of these two revolutionaries during the Emergency on two grounds mainly. First, “…Assuming that (their) offences are political offences, under the Indian Penal, murder is murder and judges cannot rewrite the law whatever their views on death sentence, as citizens may be, and interfere where they have no jurisdiction.”

The judiciary and the President in India increasingly appear to take on the role of holy cows’ - claiming to be sacrosanct and beyond any questioning. The former, at the drop of a hat, hauls up dissidents who challenge their verdicts, on the charge of contempt of court,’ (e.g. Arundhati Roy’s case), or on the graver charge of `sedition’ (a colonial term, still retained in our penal code, shamefully by an Independent India), aimed mainly at those who raise legitimate questions about the Indian state’s policies towards disgruntled nationalities like Kashmiris, Manipuris and ethnic-based movements. It is a long haul for those accused of these charges, to get acquitted.

In extreme cases, when the judiciary condemns these people to death, their last resort is the President to whom they can send mercy petitions. But the President – being elevated to the position of another holy cow’, under the Constitution - had usually been a hoof-stamp’ (a la ` rubber stamp’) President. Just like Fakhruddin Ali Ahmed, who stamped his hoof rejecting the mercy petitions of Bhoomaiyah and Kishta Gowd, allowing them to be hanged, his successor Pranab Mukherjee similarly signed with his hoof the rejection of the mercy petition of Afzal Guru – without considering the legal controversies surrounding allegations about his involvement in the Parliament attack.

From the brief historical account narrated above, it should be evident to conscientious readers that the Indian judicial system had been dominated for years by judges (and lawyers too) who had been quite brazen in expressing their biases against dalits, tribals, Muslims and political dissidents like sympathizers of the Maoist rebels (e.g. Professor J. N. Saibaba). For most of the common Indian citizens who are fighting for justice, or simply asserting their rights – whether the tribal villagers of Bastar and Jharkhand, or oppressed dalits in other parts of the country, or workers retrenched from factories, or even non-partisan Muslim students (accused by the police on false charges, who spend years in jail before being acquitted by some discerning judge at the higher court) – it is impossible to gain justice through the expensively steep hierarchical staircase of the judicial system. While a few are lucky to climb up (with the help of lawyers) to reach the step that allows them acquittal, the majority remain imprisoned for years in jails all over India, as under trial prisoners. Do we have to wait for another Bastille , to rescue these innocent poor from the jails, and to sing with Joan Baez: “Raise the prisons to the ground” ?

Sumanta Banerjee is a political commentator and writer, is the author of In The Wake of Naxalbari' (1980 and 2008);The Parlour and the Streets: Elite and Popular Culture in Nineteenth Century Calcutta (1989) and ‘Memoirs of Roads: Calcutta from Colonial Urbanization to Global Modernization.’ (2016). He is based in Hyderabad.

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Some say justice is blind .it is also dumb and deaf. The system has produced verdicts which rarely depend on jurisprudence…they depend on the ‘ view’ of judges which are normally partisan. Most judgements are against Muslims, dalits, backward classes and disabled persons and women. Poor Innocents are jailed while rich murderers are left off the hook with impunity. The rapes and killing committed by army or police are rarely punished. The system is heavily against majority and justice is loaded towards wealthy politicians and corporate industrialists

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